Yesterday a federal judge said the Pentagon may proceed with its trial of Salim Hamdan, Osama bin Laden's former driver, despite his lawyers' argument that procedural protections for defendants appearing before military tribunals at Guantanamo Bay remain constitutionally inadequate. Among other things, they object to the admissibility of hearsay and of evidence obtained through what The New York Times diplomatically calls "coercive interrogation methods." They also argue, pretty plausibly, that prosecuting Hamdan for conspiracy and providing material support for terrorism, offenses that were not added to the list of crimes that could be tried by military courts until four years after he was captured, violates the Constitution's prohibition of ex post facto laws. But at least Hamdan, a Yemeni who was captured in Afghanistan in 2002 and has been held at Guantanamo since then, will get to raise these issues in federal court after he's convicted. (Is there any point in pretending he might not be convicted?) Not so Ali al-Marri, a legal U.S. resident from Qatar who was arrested in Peoria, where he was studying computer science, in December 2001. The government has no plans to prosecute al-Marri; it just wants to keep him locked up.
In June 2003, a month before al-Marri was scheduled to be tried on charges of credit card fraud and lying to the FBI, President Bush issued an order that described him as an Al Qaeda operative and transferred him to military custody. Since then he has been imprisoned at the Navy brig in Charleston, South Carolina. This week the U.S. Court of Appeals for the 4th Circuit agreed that President Bush has the authority to classify people arrested in the U.S. as enemy combatants and detain them indefinitely. It reversed a contrary 2007 ruling by a 4th Circuit panel that said the government had to transfer al-Marri back to civilian custody, after which he could be tried for whatever crimes he may have committed. "The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the court said then, adding that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution."
In this week's decision (PDF), by contrast, five members of the court said Congress implicitly authorized the military detention of suspected Al Qaeda members, including those arrested in the United States, when it approved the use of military force against the terrorist network and its Taliban allies. Therefore, "if the Government's allegations about al-Marri are true," his detention is legal. A different five-judge majority said that, assuming the other majority is right about the president's legal authority, al-Marri "has not been afforded sufficient process to challenge his designation as an enemy combatant." The government's case against him consisted of nothing but a 2004 declaration by an intelligence official asserting that al-Marri was an al-Qaeda "sleeper agent" who had agreed to "facilitate terrorist activities and explore disrupting this country's financial system through computer hacking."
Now the Supreme Court, which has said "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," will have to decide whether that right also applies to legal residents and exactly what it entails. Civil libertarians may not like the procedures that ultimately emerge from all this litigation. But at least the courts have definitively rejected the Bush administration's circular "enemy combatant" logic, whereby people accused of terrorist connections lose any right to challenge the accusation because terrorists don't deserve due process.